RAMESHWAR Vs. ALKA

JUDGEMENT

(1.) APPEAL is admitted on the following substantial questions of law :

(2.) BEING aggrieved by the judgment dated 26.9.2008 passed by VII ADJ, Ujjain in Civil Appeal No.147-A/06 arising out of judgment dated 25.7.2007 passed by I Civil Judge Class II, Ujjain in Civil Suit No. 147- A/06 whereby the suit filed by the appellants for declaration and permanent injunction was dismissed, was maintained, the present appeal has been filed.

(3.) LEARNED counsel for appellant submits that impugned judgment passed by learned Courts below are illegal and deserve to be set aside. It is submitted that in absence of written statement and also in absence of any documentary evidence in rebuttal, there was no justification on the part of learned Courts below in dismissing the suit filed by the appellants. Learned counsel further submits that appellants are admittedly in possession of the suit property, therefore again there was no justification in not granting the decree of permanent injunction in favour of appellants. It is submitted that appellants also moved an application under Order 41 rule 27 CPC which has been dismissed without assigning any cogent reason. So far as refusal of decree of declaration is concerned, learned counsel placed reliance on a decision in the matter of Kali v. Ramadhar [2005(1) JLJ 251=2004(3) MPLJ 598], wherein plaintiff placed in possession of suit land in 1944 by executing an unregistered sale-deed by the late 'R' the recorded owner of suit land for Rs.70.00, plaintiff since then continuously remained in possession of the suit land and in Khasra, possession of plaintiff was recorded on the basis of unregistered sale- deed, this Court held that finding of fact recorded by first appellate Court neither perverse nor illegal. On the basis of the finding the appellate Court rightly held that plaintiff is entitled to seek declaration of title and injunction restaining defendant-appellants from interfering in his possession of suit land and rightly allowed appeal decreeing suit of plaintiff and second appeal by defendant was dismissed. It is submitted that in view of aforesaid, appeal filed by the appellants be allowed and impugned judgment passed by learned Courts below be set aside.